Citation Nr: 18151155 Decision Date: 11/19/18 Archive Date: 11/16/18 DOCKET NO. 15-17 841 DATE: November 19, 2018 REMANDED Service connection for a left knee condition is remanded. Service connection for a right knee condition is remanded. Service connection for a left ankle condition is remanded. Service connection for a right ankle condition is remanded.   REASONS FOR REMAND The Veteran served from December 1995 to June 2004. The case is on appeal from a June 2013 rating decision. In his May 2015 VA Form 9, the Veteran requested a Board hearing. A Board hearing was scheduled for October 2018. The Veteran did not attend the hearing; thus, the request is considered withdrawn. See 38 C.F.R. § 20.704(d). 1. Service connection for a right knee condition. 2. Service connection for a left knee condition. 3. Service connection for a left ankle condition. Both claims are remanded for a new VA examination and further development. The Veteran contends that he has experienced increasing knee and ankle pain. He believes that his conditions could be associated with his already service-connected flat feet (pes planus). He reports that the conditions have “progressively gotten worse” and that constant pain starts in his heels or bottom of his feet, and “causes the pain in the ankles and knee area.” At a VA examination provided to the Veteran in May 2013, the examiner noted that the Veteran had a diagnosis of bilateral knee strain during service, with current symptoms of pain and locking, especially with frequent or repetitious movements. He also had a diagnosis of ankle strain in both ankles, with symptoms of pain, weakness, and mild ambulatory difficulties, especially with frequent or repetitious movements. The examiner also recorded functional loss and/or impairment of the knee, but then opined that the condition is “resolved” because it is a transient condition and less likely as not due to the Veteran’s claimed flat feet. The examiner also opined that the ankle conditions were “thought to have resolved,” and were less likely as not due to or the result of the Veteran’s claimed flat feet. The examiner did not opine as to whether any knee or ankle condition could be directly related to service. Even without a current diagnosis, these reports of knee pain may constitute a current disability to the extent they result in functional impairment. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (holding that pain causing functional impairment can constitute a current disability). Accordingly, a remand for a new VA examination is warranted to better determine whether there is a current diagnosis of a bilateral knee condition, or alternatively if the Veteran’s pain rises to the level of functional impairment in line with Saunders, as well as a medical opinion. In light of the remand, updated VA treatment records should be obtained. 4. Service connection for a right ankle condition. The June 2013 rating decision also denied service connection for a right ankle condition. After a July 2013 notice of disagreement (NOD) was filed, the subsequent May 2015 statement of the case (SOC) did not include the right ankle issue. In the July 2013 NOD, the Veteran listed four issues. Although he listed right knee twice, it is clear that he meant to include the right ankle as he discussed both knees and both ankles in the narrative section of the NOD form. Because the July 2013 NOD can reasonably be construed as including the right ankle claim, the Board will remand the issue to the RO for consideration and issuance of an SOC. See 38 C.F.R. § 19.9(c); Manlincon v. West, 12 Vet. App. 238 (1999). The matters are REMANDED for the following action: 1. If the claim is not granted in full, issue an SOC for the claim of service connection for a right ankle condition. This issuance should include notification of the need to timely file a substantive appeal to perfect an appeal. 2. Obtain update VA treatment records dated since July 2017. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any knee and left ankle condition. First, the examiner should determine whether the Veteran has any current knee and/or left ankle condition, which may include pain alone that rises to the level of functional impairment. If a diagnosis or functional impairment is not shown, it should be explained why this is so. Then, the examiner should opine whether it is at least as likely as not (a 50 percent or greater probability) that any knee and/or left ankle condition (including functional impairment): (a) had its onset during, or is otherwise related to, active service, or (b) is caused or aggravated by his service-connected pes planus. Aggravation is an increase in severity beyond the natural progress of the disease or temporary flare-up. (Continued on the next page)   The examiner should provide rationale for all opinions expressed, including by citing to the record. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Morford, Associate Counsel